052: Taking Them to the Cleaners

Stella Case No. 052, Originally Published: 4 June 2003

Some people think the problem with outrageous lawsuits is so bad the government should step in. But sometimes the government is getting into the act itself.

The State of California has pulled out the big guns: it has sued a number of industrial polluters. The state says groundwater in the town of Chico is contaminated with perchloroethylene, otherwise known as perc or PCE, a common solvent used in dry cleaning since the 1930s.

In 1998 about 344 million pounds of PCE was used in the U.S. About 25 percent of that was used by the dry cleaning and textile processing sector; 50 percent was used in the manufacture of other chemicals, the rest was used in other processes such as degreasing. Ironically, its use has actually increased in recent years since it’s used in the manufacture of hydrofluorocarbons, the refrigerant used to replace chlorofluorocarbons in air conditioning, because CFCs are thought to deplete the ozone layer.

Still, the State Attorney General’s office has filed suits against:

  • Vart Vartabedian, age 93.
  • Bob Heidinger, 87, and his wife Inez, 83.
  • Paul Tullius, 57, and his wife, Vicki.
  • And many others, mostly elderly former dry cleaners. And also the City of Chico, because their sewers leak, causing decades-old PCE residues to seep into the ground.

take to the cleaners 300x146 - 052: Taking Them to the Cleaners“Whenever you’re suing someone who is older or who ran a mom-and-pop dry cleaners, you do have sympathy for them,” said Deputy Attorney General Rose Fua. On the other hand, she adds, “if somebody was 85 years old and they killed somebody, does the law not apply to them?”

Then how does the state explain the case against Tullius? The Air Force retiree bought a building in Chico in 1988 to house his old car collection. It’s now leased to a homeless shelter. He had no idea when he bought the building that it housed a dry cleaning business until 1972 and, if he did, it may not have occurred to him that it was something he needed to worry about.

That doesn’t matter to the state: they’re suing him anyway since he owns it now. The man he bought it from has “sort of become a friend, but I’m going to have to sue him” to protect himself, Tullius says. “And I suppose he’ll have to sue the person he bought it from.” He estimates it will cost him $75,000-100,000 in legal fees, not to mention countless hours of effort, to fight the state’s suit.

“I fought in two wars,” Tullius says. “I thought I’ve done everything right and now — can you imagine getting a bill like this for something we had absolutely nothing to do with? Can you imagine what that does to your life? I’m sort of thinking this isn’t the country I thought it was.”

Tullius aside, the others are indeed former dry cleaners. The state says they dumped PCE down the drain and caused the contamination. But the state doesn’t seem to have any proof of its contentions. Bob Heidinger, for instance, says his machines never dumped PCE. In a sworn statement, he says his machines recycled the PCE, and that the residue was collected in buckets and dumped in the trash, which was standard procedure at the time.

“It’s shocking that this should happen almost 30 years after we sold the business,” Heidinger says. “I’ve worked all my life. We did nothing to cause this suit. Where is the proof? We never did anything wrong.” He sold his business in 1974. The building it was in now houses a coffee shop.

How does the state respond? “We’ve identified who we think were the sources of the pollution,” said a state spokesman. “We’ve done quite a bit of investigation up there.” That makes the cases a matter of flimsy evidence versus the failing memories of long-retired small business owners, which is hardly a good way to get to the truth.

But surely the dry cleaners had insurance. These days, insurance doesn’t cover environmental cleanup, but 30-40 years ago it usually did. Unfortunately, most of the defendants in the suits don’t know where their decades-old insurance papers are. After 10-20 years, they figured they didn’t need to keep that sort of paperwork anymore.

The state doesn’t care.

“The groundwater in Chico is contaminated with PCE and someone has to pay for cleaning this up,” says Deputy Attorney General Fua — even though the state has already cleaned up Chico’s groundwater and declared it safe to drink. “If we don’t find the responsible parties, that means the taxpayers have to clean it up.”

So the state is going after a handful of people who likely don’t have millions of dollars anyway, and can’t defend themselves because they never imagined they’d need to take receipts and other documentation to court decades after they retired — papers they never dreamed it would be reasonable to need to have at their fingertips forever. “If they want to sue me, fine and dandy,” Vartabedian says. “All I can do is go broke.” Him, and a lot of other people who should be enjoying their retirement in peace.

Sources

  • “State Is Suing Ex-Dry Cleaners”, Sacramento Bee, 28 April 2003
  • “White Paper: Perchloroethylene”, Halogenated Solvents Industry Alliance, November 1999

Case Status

An interesting type of consultant came to the rescue of at least some defendants: “Insurance Archeologists.” At least one defendant who did find their old insurance agent got this reply from him: “The new record retention plan only requires that we keep records for seven years.” Sounds like malpractice to me if a regulatory agency can come after the companies’ clients 20 or 30 years later.

Bob and Inez Heidinger were lucky: they had sold their dry cleaning business 30 years before the state came after them. “We knew they had been insured but we had no proof,” said their daughter, Barbara Heidinger. “We had thrown away their old business records when we cleaned out the attic a few years earlier.” But an insurance archeologist found the policy in their old agent’s files. “Finding the insurance was a huge relief,” Barbara said. If the consultant hadn’t found the policy, “the State of California could have taken everything. My parents would have lost all they had worked for.”

Couldn’t the insurance company had found the policy in their records? Surely they have copies of all the old policies. Yes… but they have every incentive not to. And really, do the old owners even know which insurance company to ask? The court isn’t going to help either — not when they are not assured of the specific insurance company and policy number …and if the defendants have that, they don’t need the court order.

My 2021 Thoughts on the Case

drycleaner consent decree 246x300 - 052: Taking Them to the Cleaners
Take notice of this Public Notice: this Proposed Consent Decree (Settlement Agreement) is dated in the fall of 2017: these cases are still going on, or at least have been recently. (Source)

Notwithstanding the discussion in the Case Status above, what I go back to is the state proving their cases rather than “We’ve identified who we think were the sources.”

That was an official state position, too. In one U.S. District Court for California’s Eastern District decision I found (the case citation is — take a huge breath — “CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff, v. PAYLESS CLEANERS; College Cleaners; Heidinger Cleaners; Norge Village Cleaners; Cava, Inc., A California Corporation; Lobdell Cleaners; City of Chico; Norville R. Weiss; Janet L. Weiss; Paul A. Tullius; Victoria Tullius; Robert H. Heidinger; Inez N. Heidinger; 5th and Ivy, A General Partnership; Richard C. Peters and Ramona W. Peters, Individually and as Trustees of the Peters Family Trust; Betty M. Rollag; Randall Rollag; and Tami Rollag, Defendants. and Related Counter-Claims.”), comes this (emphasis added):

This action arises out of a two-mile wide perchloroethylene (“PCE”) “plume” located south of the central business district of Chico, California. On October 31, 2002, the California Department of Toxic Substances Control (“DTSC”) filed a cost recovery action against various individuals and companies alleging rights under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq. and state law based claims. The DTSC named several dry cleaning businesses as well as the property owners of the sites where those businesses operated upon its belief that the PCE emanated from those businesses.

Their “belief” that these are perhaps the people liable for the “plume” vaguely located “south of the central business district”?! Sure, that’s good enough to take their life savings! A bureaucrat “believes” they probably had something to do with it, so hand over the trust fund you set up for your grandchildren’s education, bub.

Now, I completely agree that businesses should be responsible for dumping hazardous waste into the land and water we all need to live. But the state needs to be absolutely sure they have the right people or corporations to make their “cost recovery” actions from, especially when they have unlimited resources funded by the very taxpayers they are supposedly doing this sort of “cost recovery” for.

But it sure doesn’t look like they are: the difference between a “Court of Law” and a “Court of Justice” is well illustrated here.

And, as the illustration above shows, these actions have continued on for years afterward, and for all we know they’re still targeting retired dry cleaners up and down the state if they “believe” they can get some money out of them.

Letters

Elaine, an attorney in Massachusetts: “Take me off your list. You are too ideologically anti-lawyer. Clearly not educated or wise. Maybe you would rather people shoot it out at high noon on High Street? Since when do you define what is appropriate for judicial determination?”

  1. No, I won’t take you off TSA’s distribution; I didn’t put you there — you did — and the site’s Terms of Service clearly state that the maintenance of your subscription is your responsibility. If you want off distribution, follow the instructions provided in every issue.
  2. Calling me names is, as you should have learned in law school, an ad hominem attack. Since you skipped class that day and missed that question on your final, here’s the definition: “Appealing to personal considerations rather than to logic or reason” (American Heritage). That means you don’t have a valid argument to counter the button I pushed, so you must resort to feeble attempts to discredit the source. Tens of thousands of readers would beg to differ with you on your assertion that I’m “clearly not educated or wise.”
  3. Your “we must either have frivolous lawsuits or shoot outs in the street” is pretty silly, and nicely demonstrates your own level of education and wisdom.
  4. And to drive that point home, are you really asking “since when” the author of a publication was allowed to state his opinion? And you passed the Bar?! And
  5. I’m not at all “anti-lawyer,” I’m “anti-stupid,” whether the stupidity is committed by lawyers, plaintiffs, judges, goofballs on High Street …or my own readers.

Attorneys who are more part of the solution than part of the problem most definitely have a different view:

Mark, an attorney in Missouri: “I enjoy reading the Stellas, and cases like the bad hair day or the school valedictorian’s million dollar lawsuit, but I think those are relatively isolated cases that aren’t really typical of how the system works. And there isn’t any clear fix for these oddball cases other than laughing at them.”

Being entertained by the cases is not a bad reaction; better to laugh than cry, and entertainment is part of my mission.

Certainly the vast majority of lawsuits are quite valid — I’ve never argued otherwise. But if the silly cases are as isolated as you say, how is it that I (and many other publications and web sites such as Overlawyered and mlaw.org) can keep coming up with case after case after case week after week after week?

There most certainly is a problem, and there is a gigantic cost on our society because of it. That’s not something to just laugh at; it’s something that needs attention.

On to the case of the zoo elephants:

Pam in Virginia: “I thought your piece on the lawsuit to keep ‘Ruby’ and ‘Gita’ from being separated was quite interesting — more so as I had just read an article in the June issue of Smithsonian magazine about elephants. One point the article made regarding African and Asian elephants being kept together is that, while African elephants can carry a form of herpes virus, they are immune to it, but [can] transmit it to Asian elephants, who die from it. So maybe a lawsuit should be filed to keep the LA zoo from allowing contact between Ruby and Gita?”

That may make more sense.

Katie, a high school sophomore in California: “In your Stella Short about Ruby the elephant, you closed by asking whether we should insist that do-gooders and courts be the ones to judge actions made by ‘competent’ professionals. While I agree that the separation of the elephants is not a solid basis for a lawsuit, I was surprised at the implication that ‘do-gooders’ should leave things up to the professionals. Even solely based on the articles you have featured, it is clear that many professionals do not always make just or moral decisions, and this is especially evident regarding the treatment of animals.”

I used the word “competent” advisedly, but you left something else out: the actual question I asked was, “Or do we really insist that do-gooders and courts should countermand every trivial decision made by competent professionals?” The location of zoo animals surely is a pretty trivial thing, especially to someone who doesn’t have “standing” to sue (is not an affected party).

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3 Comments on “052: Taking Them to the Cleaners

  1. Case takes me back to my school days in the 50’s and early 60’s. We NOW know that asbestos and carbon tetrachloride are dangers to health. The key word is “NOW.”

    In grade school art class, one of our projects was making a sculpture of asbestos. Can I now go to court and sue the Art Teacher, the School, the City Board of Education, the State Board of Education and whatever the entity that became the Department of Education for the possibility that they contaminated me?

    In Junior High School (Middle School) I participated in a class named “Printing,” where we learned to hand set type and run printing machines (smaller versions of printing presses used for printing newspapers and books.) To clean ink from the type and machines we used carbon tet. Should I now be allowed to sue the Printing Instructor and al the entities listed above for the same possibility as above?

    I joined the Army in 1968 and served in Vietnam. I ate my share of C-Rations (boxed meals) that contained small packs of cigarettes. When I was in Basic Training, rest breaks were announced with “If you got ’em, smoke ’em. If you ain’t got ’em, bum ’em. If you don’t smoke, y’all are on police call! (picking up trash, including discarded cigarette butts).” When we saw the Surgeon General’s warning on the small packs we laughed and rhetorically asked if the SG knew about how hazardous bullets were. And, in Vietnam, if we were not being given cigarettes, they only cost $1.00 a carton at the Post Exchange. I.e. we were encouraged to smoke in those days. Come forward to 2021 and I have bladder cancer, which smoking is a direct contributor to (“Smoking is the most important risk factor for bladder cancer. Smokers are at least 3 times as likely to get bladder cancer as non-smokers. Smoking causes about half of all bladder cancers in both men and women.” Jan 30, 2019 American Cancer Society)

    The Department of Veterans Affairs now has under consideration an additional presumption of Agent Orange contamination, Bladder Cancer. To put that into layman’s terms, the VA is now considering that those of us who served in Vietnam, where all of us who served there are presumed to have been exposed to Agent Orange, a defoliation spray used to kill off plants (and to deny the use of forest cover to the Viet Cong and the North Vietnamese Army), and is NOW known to be a carcinogen, compensation for having bladder cancer.

    Why give the compensation when the greatest known cause for bladder cancer is smoking? I would only agree to that if the person with bladder cancer could demonstrate never having smoked. And I was a smoker for three years before I joined the Army. I am paying the price for my own ignorance and stupidity. Why should I now be given compensation for that? (For other service incurred disabilities, I am receiving 100% VA Compensation, so even if the VA does list Bladder Cancer as presumptive of exposure to Agent Orange, I will not receive more compensation. And have no intention of making application for it.)

    My point is that in many cases, the NOW known danger was not known at the time of when the dangers were happening. So, why should a court or government agency, or a person, be allowed to attempt to be compensated (by lawsuit)?

    Reply
  2. “The new record retention plan only requires that we keep records for seven years.” Sounds like malpractice to me if a regulatory agency can come after the companies’ clients 20 or 30 years later.

    And people wonder why I refuse offers to stop receiving paper statements, and have a filing cabinet with records dating back to my highschool checking account….

    Reply
  3. While I would love to lay this at the door of lawyers some of this correctly belongs at the door of the judiciary. Just from their title a Judge should be using some Judgement in many of these cases.

    If these are civil suits maybe they don’t have the equivalent of a Preliminary Hearing as in a criminal case but I’m pretty sure the lawyers can file motions that would be the equivalent of statements made in a Preliminary Hearing and certainly some of them should then cause the Judge to dismiss.

    Of course, I recognize that retaining a lawyer to file those motions has a cost associated with it which is why I continue to advocate Loser Pays All Fees, and that would also apply to dismissals.

    Reply

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